Why the government's whistleblowing review is long overdue

The UK was one of the first countries in the world to develop laws supporting workers who blow the whistle on wrongdoing in the workplace - a so-called "whistle-blowers framework".

The laws date back a quarter of a century to the Public Interest Disclosure Act 1998, an important piece of legislation that came into effect the following July, which sought to protect individuals who highlight malpractices in the public interest.

Examples include damage to the environment, risks to health and safety, financial offences or lawbreaking. The laws have been tweaked since on various occasions.

In 2014, for example, the government set out a list of more than 60 such organisations and individuals designated as "prescribed persons", including public bodies such as the Bank of England, the Financial Conduct Authority, Ofcom, the Children's Commissioner for England, the Food Standards Agency and the Care Quality Commission.

Then, in 2017, the government imposed a new requirement on these prescribed persons to report on the whistleblowing disclosures received. 

This has provided a lot more information on the kind of tip-offs that prescribed persons are receiving from whistle-blowers.

For instance, the Financial Conduct Authority reported in January this year that it had received 291 new whistleblowing reports between July and September last year, including allegations of fraud, mis-selling, poor systems and controls and failures of fitness and propriety.

Interestingly, the majority of people providing the FCA with information gave their names, rather than opting to remain anonymous - although, in order to protect the confidentiality of those whistle-blowers, it has to keep details of the allegations private.

Today, though, ministers launched a review of the whistleblowing framework aimed at assessing the effectiveness of the current regime.

Kevin Hollinrake, the business minister, said: "Whistleblowing is a vital tool in tackling economic crime and unsafe working conditions, and the UK was one of the first countries in the world to develop a whistleblowing framework.

"This review has been a priority for me since joining government, and it will take stock of whether the whistleblowing framework is operating effectively and protects those who call out wrongdoing in the workplace."

What appears to have informed the decision to launch a review - which was promised in the Commons last autumn - is an upsurge in the number of tip-offs received by the Care Quality Commission and Health and Safety Executive during the COVID pandemic.

Another likely trigger for the government, although this was not stated today, is that the EU has passed a Whistleblower Directive, which has since been passed into national laws for member states.

This directive toughened up whistleblowing rules and sought to introduce more consistency in the treatment of whistle-blowers across the bloc.

The UK, having left the EU, appears to be in danger of having a less rigorous approach.

Among the issues the review will seek to address is how the whistleblowing framework has facilitated disclosures, how it has protected workers, how readily information is made available to workers and employers and what wider benefits the existing framework has provided.

There is no doubt such a review is overdue.

It is now more than three years since the All Party Parliamentary Group for Whistleblowing described current whistleblowing legislation as "complicated, overly legalistic, cumbersome, obsolete and fragmented".

There has also been plenty of evidence that the existing framework is not working.

Protect, the whistleblowing charity that has provided support to more than 40,000 whistle-blowers, published a report in 2020 called 'Silence in the City 2' (the first such report appeared in 2012) which specifically looked at whistle-blowers working in financial services.

It revealed seven in 10 of those raising concerns were victimised for doing so while a third of whistle-blowers reported that their concerns were ignored.

It is not only in the City, though, that the existing framework appears not to be functioning effectively.

There have been a litany of public scandals recently suggesting whistle-blowers are being dissuaded from coming forward or being mistreated when they do.

Last week's report by Baroness Casey on the recent scandals to have engulfed the Metropolitan Police highlighted an environment not conducive to whistle-blowers.

And the chaotic mismanagement of the evacuation of Kabul in the summer of 2021, when hundreds of Afghans who had worked for the British Army were left stranded, also raised concerns within echelons of the civil service of how easily whistle-blowers can raise their concerns outside government.

Protect has also found much inconsistency in how prescribed persons report on the whistleblowing concerns that are raised with them, suggesting too few regulators provide sufficient information on the concerns raised with them and how they respond, adding: "The reporting duty on regulators is implemented in a patchy and inconsistent manner."

This is something that the government said today would be directly addressed by the review.

Better rewards are worth a look

One area definitely deserving of attention is the issue of whether or not whistle-blowers should be financially rewarded for their actions.

One reason the US is seen as having such a robust whistleblowing culture is because people are rewarded for highlighting wrongdoing.

Those who inform the Internal Revenue Service (the US equivalent of HM Revenue & Customs) of those who are not paying the taxes they owe can receive up to 30% of the taxes owed and penalties paid.

Similarly, those blowing the whistle on money laundering activities can receive up to 30% of any sanctions imposed, when the punishment is a fine of more than $1m.

The same applies to those highlighting wrongdoing to the Securities & Exchange Commission, the main US financial regulator, where it levies a fine of more than $1m as a result.

In the UK, by contrast, only HMRC and the Competition & Markets Authority currently pay rewards to whistle-blowers and not on as generous a scale as their US counterparts.

It will be interesting to see whether this review changes that. The experience of the pandemic - given the poor recovery rate for public funds mis-spent on PPE - suggests it is worth another look.

-sky news